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In re Rachel S.D.

Supreme Court of New York, First Department

January 14, 2014

In re Rachel S.D., and Another, Children Under the Age of Eighteen Years, etc., and Luis N., Respondent-Appellant,
v.
Administration for Children's Services, Petitioner-Respondent.

Kenneth M. Tuccillo, Hastings on Hudson, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (John A. Newbery of counsel), for the children.

Sweeny, J.P., Renwick, Andrias, Freedman, Feinman, JJ.

Order of disposition, Family Court, Bronx County (Kelly O'Neill Levy, J.), entered on or about January 23, 2013, which, upon a fact-finding determination that respondent neglected and abused the subject child, Genesis N.D., and derivatively neglected the subject child, Rachel S.D., placed the children with petitioner until the next permanency hearing, and directed respondent to comply with certain conditions, unanimously affirmed, without costs, insofar as it brings up for review the fact-finding determination, and the appeal therefrom otherwise dismissed as moot, as the placement terms of the order have expired. Order of fact-finding, same court and Judge, entered on or about June 22, 2012, unanimously affirmed, without costs. Appeal from order of protection, same court and Judge, entered on or about January 23, 2013, unanimously dismissed, without costs, as abandoned.

The court properly determined that petitioner proved by a preponderance of the evidence that appellant abused and neglected Genesis, and derivatively neglected Rachel, based on Rachel's statements to a doctor at the hospital where Genesis was treated and to an ACS caseworker. The court found that these statements were amply corroborated by Genesis's hospital records and by the doctor's testimony concerning those statements and as to 22-month old Genesis's injuries, which included significant head and body trauma from appellant's picking her up by her legs, swinging her into furniture, and kicking her in the back into a wooden garbage can (see Matter of Nicole V., 71 N.Y.2d 112, 118 [1987]).

The court properly drew a negative inference against appellant based on his failure to testify, which did not violate his Fifth Amendment rights because Family Court proceedings are civil in nature (see Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, 141 [1983]; Matter of Leah M. [Anthony M.], 81 A.D.3d 434 [1st Dept 2011]).


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